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EPA Withdraws CAFO Database Rule

On Friday afternoon, July 13, 2012, EPA let it be known (without a press release) that it was withdrawing a proposed rule to collect basic information about animal feeding operations in the US.

Feedlot operators and chicken producers cheered. Environmentalists — who had believed EPA's promise in a court settlement that it would collect and publish the data — groaned. The media and public mostly ignored the story.

EPA had planned to publish the collected information in an online database, which would have been very handy for journalists trying to report on pollution from factory farms.

There are roughly 450,000 animal feeding operations in the US. The amount of cow, pig, and chicken manure produced in the US is 13 times more than the amount of poop produced by humans, according to one estimate. That manure includes the phosphorus and nitrogen that creates dead zones in the Gulf of Mexico and Chesapeake Bay, along with ammonia, hydrogen sulfide, methane, disease-causing germs (some antibiotic-resistant), and other pollutants. Yet the Clean Water Act does not specifically require it to be treated — unlike human waste.

Under the CWA's National Pollution Discharge Elimination Sytem (NPDES) rules, animal waste from feedlots (known as concentrated animal feeding operations, or CAFOs), only requires treatment and a permit if it is discharged into a lake or stream. For the most part, EPA delegates administration of NPDES permits to state environmental agencies, who have a mixed record on enforcement, especially when it comes to CAFOs and farms.

As a result of fragmentation and lax enforcement, the Government Accountability Office concluded in a 2008 report that "no federal agency collects accurate and consistent data on the number, size, and location of CAFOs." GAO concluded further: "EPA does not have the information that it needs to effectively regulate these operations." After the Natural Resources Defense Council (NRDC) and other groups went to court, EPA agreed in a May 25, 2010, settlement to systematically collect basic information about CAFOs — their location, number and type of animals, and manure storage and disposal methods.

On October 21, 2011, EPA published a proposed rule requiring CAFOs to submit this information. The ag lobby pushed hard against it. EPA made public on July 13, 2012, its decision to withdraw the proposal, and the withdrawal was actually published in the Federal Register on July 20.

According to the Federal Register, EPA's commitment in the 2010 settlement was merely to propose a CAFO reporting rule — not to finalize it. So the environmentalists may have been had.

Politics offers one explanation for the withdrawal, but not a complete one. After all, political observers credit President Obama's 2008 win in Iowa to a strong stand for CAFO regulation. And President Obama began his term by declaring that his administration would seek unprecedented openness.

It is worth remembering that the ag lobby fought this same fight on the previous Farm Bill in 2008. Back then the US Department of Agriculture was trying to institute a National Animal Identification System, so that disease-causing food animals could be traced back to the facilities that raised them. To even begin, USDA needed to compile a "feedlot phone book," a listing of all the CAFOs and similar operations, really just their names, addresses, and phone numbers. Congress took seriously the industry's claims that a listing would invade the privacy of feedlots that could be smelled several miles away, and that terrorists, completely ignorant of what that smell was, would make use of the listings to target feedlots. The 2008 Farm Bill ended up forbidding USDA to disclose the information. That is perhaps moot, since as of July 2012, USDA has not yet compiled it.

Similar scare-tactics prevailed this year, as Tea Party types peddled false tales of EPA flying "drones" over factory farms.

EPA justified the CAFO reporting rule withdrawal partly by saying it could compile a database partly from information collected by the states. In fact, many states do collect some amount of CAFO information as part of their NPDES programs. But that information is often spotty and inconsistent — which will make it hard for EPA to compile it and even harder to make useful conclusions from it.

And the withdrawal may make it harder to get the information disclosed. Under the proposed rule, it would have been gathered under authority of section 308 of the Clean Water Act, which would require it to be disclosed. If it is gathered in patchwork form, stronger arguments for not disclosing it may be possible.

But journalists who want to report about CAFO pollution and permitting still have ways to do so (including nose-based data gathering). While state environmental programs vary widely, many do collect CAFO data — even for unpermitted facilities — and even disclose some of it via searchable online databases.